Crary Bros. v. Hoffman
115 Iowa 332
Iowa
1902
Check Treatment
Waterman, J.

1 *3342 ;3 *333W. W. and G-ildea Hoffman are sons of Jacob and Susan J. The conveyance to the former was, as claimed, for the benefit of both, and the consideration therefor is asserted to have been the payment by them to their mother of the wages earned by them during their minority. It is true, W. W. Hoffman. *334claims to have paid over his wages during the two years succeeding the attainment of his majority. But the amount, on his own showing, is small, and the showing far from satisfactory. If there is a consideration for this transfer, it must be found in the earnings of these two boys during minority, paid over to their'mother. If these minors were not emancipated, their earnings belonged to their father. Cain v. Devitt, 8 Iowa, 116. And the taking of such earnings by either him or the mother would not furnish a consideration for the conveyance made, for there would be no obligation to return to the minor the money so received.. The burden of proving emancipation was upon defendants. Kubic v. Zemke, 105 Iowa, 269. It is true, emancipation may be established by circumstances showing a mutual understanding between parent and child. But we fail to find anything in this case tending, either directly or indirectly, to.show that the father ever emancipated either of these boys, except as hereafter stated. Neither the father nor mother testifies directly on the question. Nor is it shown the father ever assented to the mother’s promise to return the money received or its value. W. W. Hoffman testifies expressly that his father never told him that he had a right to keep what he earned. Gildea’s testimony is that his father never gave him his time until he went to work as a fireman. Being asked how his time was then given him, he answered, “By their consent to tbe officers that I should go to firing.” If this amounted to an emancipation, —and perhaps it Avould, for a consent given the railway officials that he might perform such work could only mean that such officers might deal Avith him as his ownmaster, — itwould ■cover but one year and five months of time, during which •.the minor earned some $1,200. But we need not pursue this matter further. Gildea has nothing more h> show for his interest in this land than a note for $1,200 made by his brother. He is a creditor, only; for no *335title to the property, either legal or equitable', rests in him. Therefore plaintiffs’ rights cannot be postponed to his.

Under the circumstances, we feel constrained to hold that plaintiffs’ judgment should have been made a lien on the real estate in controversy. As thus modified, the judgment will stand affirmed.